In a writ petition challenging an order directing salary deduction for a terminated teacher, the Court quashed the order due to lack of justification by the education department and awarded direction to recover erroneous disbursement from the responsible officer.
The impugned order is quashed, set aside, and made absolute.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5117 OF 1996
1. Rasta Peth Education Society & Anr. ... Petitioners
V/s.
State of Maharashtra & Ors. ... Respondents
Mr.N.A. Kulkarni for Petitioners
Mr.V.S. Gokhale, AGP, for Respondent Nos.1 to 4
CORAM: J.N. PATEL &
SMT.NISHITAMHATRE, JJ.
DATED: NOVEMBER 19, 2007
ORAL JUDGMENT:
. Heard learned Counsel. The Petitioner
management was required to approach this Court impugning
the decision of the respondent education officer
communicated to the petitioner management vide his
letter dated 20.8.1996 wherein it was mentioned that as
the Deputy Director of Education, Pune Division, Pune
has directed that one Mr.Ballal, CA, is entitled to
receive salary from January 1995 to July 1996 which
amounts to Rs.37182/- and as the same is being paid by
the Education Officer, the said amount would be deducted
from the non salary grant. According to the petitioner
society, they are running certain educational
institutions in Pune and one such institution is
Abasaheb Atre Night School at Pune of which petitioner
No.2 is the headmaster. The dispute relates to the
: 2 :
appointment of Respondent No.5 Shri Sitaram Eknath
Ballal who came to be appointed by the petitioner as he
was having the required qualification i.e. B.A., B.Ed.
and belonged to Scheduled Tribe category and was in
regular employment of Alegaonkar High School at Kirkee.
It is the case of the petitioner that by communication
dated 1.11.1988, Respondent No.2 directed the petitioner
that approval of two divisions of 8th and 9th standards
was being cancelled for want of sufficient number of
students and Respondent No.3 called upon the petitioner
by letter dated 7.11.1994 to furnish the particulars of
surplus employees in view of closure of the divisions.
Accordingly, the petitioner institution terminated the
services of Respondent No.5 by notice dated 30.11.1994
which was not challenged by him. Time and again, the
respondent insisted upon continuing Respondent No.5 on
their roll as if Respondent No.5 was entitled to be
continued. The Petitioners have placed on record
various correspondence between petitioner management and
the officials of the education department. But it
appears that the respondent education department did not
take into consideration the case of the petitioner and
insisted that a sum of Rs.37182/- towards salary of
Respondent No.5 for the period from January 1995 to July
1996 was being paid and that the same would be deducted
from the non-salary grant to which the petitioner
institution was entitled to.
: 3 :
2. It is the contention of the learned counsel for
the petitioner that the services of the surplus teachers
came to be dispensed with on the directions given by the
Education Officer and that as one Ballal was a surplus
teacher, his services were terminated and though
Mr.Ballal has not challenged the same, the respondents
were not justified in paying him salary for the said
period as communicated to them by the impugned
communication dated 20.8.1996 and therefore it deserves
to be quashed and set aside.
3. It is submitted that as this Court had granted
interim relief in favour of the petitioner, the
respondents were injuncted from deducting the non salary
grant to the petitioner school under the impugned order.
This Court while dealing with the petition at the stage
of admission has also examined the issue and recorded a
prima facie finding in the order dated 20.4.2000 i.e.,
the management had not paid the salary of Ballal for the
period from January 1995 to July 1996 because he was
declared surplus and his services were terminated. This
court has further observed that the provisions of Rule
27 of the Maharashtra Employees of Private Schools
(Conditions of Service) Rules 1981 (for short, ‘MEPS
Rules’) clearly states that in case of reduction of
number of classes at the high school level, the services
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of the juniormost teacher in the category of trained
graduates shall be terminated and in case there is
reduction in the number of classes at the middle school
level, then the services of the juniormost teacher in
the category of trained undergraduates shall be
terminated. In the present case, there was a reduction
in the number of classes at the high school level. Then
Ballal was the juniormost trained graduate teacher.
Therefore, his services were rightly terminated whereas
there was an insistence from the education department
that the services of Mr.Deshpande, who was a trained
undergraduate teacher, ought to have bene terminated.
4. Further, inspite of being served, the education
department did not bother to file their return on
affidavit so as to justify the impugned order. It is
really a matter of concern that though in the facts and
circumstances of the case, Respondent No.5 was the
aggrieved person and could have challenged his
termination on the ground that he cannot be declared
surplus claiming seniority over Mr.Deshpande. He
accepted the termination order and did not agitate the
issue but the Education department held brief for him
which resulted in passing the impugned order for which
no justification has been placed before this Court by
filing appropriate reply.
: 5 :
5. The learned AGP was not in a position to assist
the Court as to how the impugned order can be sustained
in law. Therefore, we are of the clear view that the
impugned order was passed without any justification and
it has no sanctity in the eyes of law. This Court
therefore, makes it clear that in case the education
department has acted upon the impugned order and has
disbursed the salary to Mr.Ballal as claimed by it which
was sought to be recovered from the petitioner
institution, then the said amount of salary should be
recovered from the concerned officer’s salary/pension if
he has retired who was responsible for taking such an
erroneous decision with interest @ 12% per annum and be
credited in the account of the State Government after
following due process of law.
6. With these observations, we allow the petition
and quash and set aside the impugned order. Rule is
made absolute with costs.
(J.N. PATEL, J.)
(SMT.NISHITA MHATRE, J.)
2 issues framed by the court
Whether the impugned order directing deduction of salary from the non-salary grant should be quashed.
Whether the education department provided sufficient justification for the disputed order before the High Court.
Rasta Peth Education Society & Anr.
State of Maharashtra & Ors.
J.N. PATEL
NISHITA MHATRE
As recorded by the court registry
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